This article was previously published
October 2, 2007 on VCExperts.com in The Encyclopedia of Private Equity and Venture Capital,
Section 10.2.14

The limited partnership
agreement (LPA) for a private equity fund represents a road map for the fund.
It embodies the fundamental interests and expectations of the parties. One of
its objectives is to ensure that the incentives of all parties are
well-aligned. Aside from the financial terms of the fund, the remedies (and
associated triggers) available to the limited partners are the most intensely
negotiated aspects of the LPA during the process of fund formation. Defining
the remedies and triggers is vital to aligning the incentives of general
partners (GPs), limited partners (LPs) and affiliates, and ensuring that
extraordinary situations can be dealt with swiftly and successfully.

The purpose of this article is to discuss some of the
issues surrounding common remedies and triggers. The remedies discussed include
the suspension or termination of the commitment period; the removal and
replacement of the GP; and the termination of the fund. The triggers discussed
include key-person, no-fault and for-cause provisions.

Remedies

Suspending or
Terminating the Commitment Period

The
commitment period establishes the period of time within which the fund can make
investments. It begins after the initial closing date and usually ranges from
four to seven years, depending primarily on the type of fund and the term of
the fund.

With regard to remedies, the commitment period can be
either suspended or terminated. Suspensions of the commitment period typically
prevent the GP from making capital calls to fund new investments (other than,
sometimes, follow-on investments in existing portfolio companies). GPs are,
however, allowed to make capital calls to fund partnership expenses or
investments that were in progress when the suspension began – commonly defined
as where a binding legal commitment to invest was made before the suspension
took effect.

Most LPAs allow for suspensions that last between 30
and 180 days and are invoked automatically by trigger events such as a
key-person event, a for-cause event or a sufficient no-fault vote by the LPs,
all of which are discussed later. The automatic nature of the suspension
favours LPs because it puts the onus on the GP to convince the LPs not to
terminate the commitment period. A “pro-GP” suspension clause would not
be automatic, instead requiring a majority vote by LPs to invoke the suspension
of the commitment period following a trigger event.

Before the end of any suspension, most funds require a
vote by LPs to continue the fund as before (i.e., to remove the suspension),
otherwise the commitment period is automatically terminated at the end
of the suspension. A termination of the commitment period ends the GP’s ability
to make any future capital calls to fund new investments (other than,
sometimes, follow-on investments), but does not dissolve the fund. The role of
the GP after the commitment period is terminated is to focus on building (and
successfully exiting) current portfolio companies, and eventually winding down
operations.

To move from suspension to termination of the
commitment period, some LPAs require the support of a majority or supermajority
in interest of the LPs. As mentioned above, other LPAs contain suspension
clauses that automatically default to termination unless there is a vote to
remove the suspension; thus they require only inaction by the LPs to terminate
the commitment period. Clearly, the former situation is preferable from a GP’s
perspective.

Some LPAs allow individual LPs to decide whether to
suspend or terminate the commitment period with respect to themselves (but not
other LPs). This means that the GP would still be able to call upon the LPs who
agree to continue the commitment period and all LPs who do not have the right
to terminate the commitment period unilaterally. Only these LPs would receive future
proceeds and returns from future investments. In general, whether the other LPs
in the fund are made aware of such “individual suspension/termination”
arrangements depends on the fund.

Removing/Replacing the GP

Another
common remedy included in LPAs is the removal of the GP. Given the drastic
consequences this would have on the GP (and its economic entitlements), GPs are
particularly sensitive to the terms of this remedy.

Although the vast majority of LPAs require a for-cause
event to trigger the removal of the GP, a “pro-LP” LPA would allow for no-fault
removals. While a no-fault removal remedy is rare, where available, the minimum
percentage in interest of LPs required to invoke it is usually in the 75% to
85% range, which is difficult to achieve.

The actual removal of the GP occurs very rarely.
Rather than remove the GP, LPs generally prefer that the GP work diligently to
correct any problems that it encounters and then return to the business of
managing the fund. Dissatisfied LPs tend simply to “vote with their feet” and
avoid investing in that GP's next fund.

Dealing with the Principals’ Investment

In
almost all funds, the principals have invested some of their own money. If the
GP is removed, the LPA should outline the consequences of the removal to the
principals’ investment. The appropriate consequences are the subject of
negotiation, but at least three broad options are available.

The
first, and most common, is to leave the principals’ investment as it is – that
is, it would be treated just like the investments of other LPs.

The
second option, which is seen occasionally, is to reduce any outstanding capital
commitment while maintaining the current investments. For example, if the
principals originally committed $10 million to the fund and $3 million of that
commitment was drawn down for investments before the GP’s removal, the
principals would be relieved of their obligation to contribute the remaining $7
million to the fund for new investments, but would typically remain obligated
to fund follow-on investments and fund expenses. The $3 million previously
contributed and any further contributions would then be treated like any LP’s
investment. This second option is more appealing to most GPs than the first
option.

A
third option would enable the principals to put their interest in the fund back
to the fund at fair market value. This third option is very rarely found in
LPAs.

Dealing with the GP’s Carried Interest

In
negotiating for the remedy to remove or replace the GP, there is often
disagreement over the amount of carried interest to which the former GP should
be entitled after removal. A common approach is to limit the former GP to
receiving carried interest only in relation to portfolio investments made
before its removal (the pre-removal portfolio companies). An LP-favourable
modification to the LPA would be to further reduce the carried interest owed to
the former GP (or eliminate it altogether) if particular cause events occur –
such as fraud or a breach of fiduciary duty (i.e., the GP’s entitlement is
“discounted”).

In any case, the remaining portion of the former GP’s
carried interest is available to be paid to the new GP, on the theory that the
new GP will be contributing to the existing portfolio investments and new
investments as they mature and are exited. Where there is a discount, part of
the carried interest from the existing portfolio companies is available to the
new GP, which results in the new GP’s interests being more closely aligned with
the fund’s interest in those portfolio companies. Where there is no discount,
the new GP will inevitably need to receive incentives relating to existing
portfolio companies to align its interest with the fund’s interest in those
portfolio companies, but the cost of those incentives will be borne solely by
the LPs.

In most cases, the former GP’s entitlement to carried
interest on pre-removal portfolio companies will be determined only on the
eventual exit of those portfolio companies. To increase certainty for all
parties and to perhaps increase the accuracy of the true carried interest, some
funds will use an agreed-upon valuation technique to value the current
portfolio investments at the time of removal and pay the GP its carried
interest according to that valuation. This method brings with it significant
issues regarding payment timing that need to be covered in the LPA. At least
three options are available for the timing of this payment.

The
first option is for the fund to pay the former GP immediately at the time of
removal, regardless of whether any portfolio companies have been exited at that
time. This helps to completely terminate any relationship between the former GP
and the fund.

The
second option is to give the former GP priority on its entitlements as the
pre-removal portfolio companies are exited. The former GP would receive all of
its entitlements before the new GP receives any carried interest from the
pre-removal portfolio companies. Again, however, this carried interest is paid
only as the pre-removal portfolio companies are exited.

The
third option is for the former GP and the new GP to share proportionately in
the carried interest available from the pre-removal portfolio companies. This
clearly is the most advantageous from the LPs’ perspective because it allows
for a more current and meaningful incentive to be available to the new GP.

Terminating the Fund

Terminating
the fund is arguably the most extreme remedy for all parties involved. Upon
dissolution, the affairs of the fund are wound up and its assets liquidated in
an orderly manner or distributed in kind to the LPs. After a termination event,
the GP cannot conduct any operations except those directly related to winding
up the fund. Depending on the terms of the LPA, the GP can act as liquidator
or, if the GP is unable to so (or the LPA so provides), the LPs can vote to
appoint a liquidating trustee. The liquidator must use its best efforts to
convert the assets to cash and cash equivalents, and dispose of the assets on
commercially reasonable terms. This often means exiting investments at fairly
low valuations compared to their likely value at maturity. The liquidator does
have some discretion to avoid selling assets if it deems the sale inadvisable.
Similarly, the GP can distribute some of these assets to partners in kind.

After liquidation, the fund is dissolved as the GP
makes the final distribution of proceeds. This distribution is generally
performed in the following order of priority: (1) to creditors of the fund,
including partners who are creditors; and (2) to the partners according to the
distribution priorities set out in the LPA.

Triggers and Associated Remedies

Each
fund's situation is unique, so there is no standard package of remedies and
triggers; nor is there a requirement for any particular remedy/trigger combination.
The remedy and trigger provisions are therefore tailored to fit each situation,
and the package is generally negotiated in its entirety, not as individual
clauses. The negotiating leverage of either the GP or the LPs has a major
effect on the ultimate package of triggers and remedies.

Note that in the discussion below of trigger events
and the common remedies associated with them, the percentage of interest votes
required in each case typically excludes any LP interests held by the GP
or its affiliates, since their desired outcome for certain votes is often
contrary to those of the unaffiliated LPs. Thus, when reference is made to a
vote by a particular percentage of interest, the vote required is that
percentage of the total interest of only the unaffiliated LPs. Even though this
makes it easier for LPs to trigger remedies against GPs, many consider 75% or
more votes among LPs to be almost unachievable under any circumstances.

For Cause or Fault

Defining and Negotiating
For-Cause Clauses

The
specific activities or occurrences that constitute cause should be explicitly
defined in the LPA. Sources of tension between the GP and LPs include not only
the activities or occurrences themselves, but also whether or not they need to
be material or intentional. Frequently, the definition of cause in LPAs
encompasses some or all of the following:

criminal
conviction for or admission by consent of

- a violation of securities laws, including of any related
rule or regulation, with certain de minimis exceptions, and

- a
criminal felony (or its equivalent in any non-U.S. jurisdiction);

determination by any civil or criminal court or
governmental body of competent jurisdiction or an admission of

- gross negligence/negligence,1

- willful misconduct, and

- breach of fiduciary duty toward the
fund or the LPs

commission
by the GP of fraud, embezzlement or a similar crime;

reckless
disregard of duties regarding the fund;

issuance
of an order by any court or body of competent jurisdiction permanently
enjoining the GP from fulfilling its obligations under the LPA;

knowing,
intentional or material breach by the GP of any of its obligations under the
LPA; and

bankruptcy
of GP.

If the GP has sufficient leverage during negotiations,
many of these clauses might be qualified as needing to be intentional or
material, or to have a material effect on the fund before they would constitute
cause. On the other hand, a pro-LP variation to the for-cause remedy is to
expand the remedy to apply to the activities of the principals, the manager and
their affiliates rather than only the GP.

Another point of negotiation is the existence of
“cures” to these events. Some LPAs allow for certain cures (such as firing an
offending individual) to automatically cancel the for-cause trigger. Other
cures must be voted upon by the LPs, especially if curing the for-cause event
requires a reworked business plan or triggers a key-person event (discussed
below). If a cure is available, the GP is given a specified period after the
initial notification of the for-cause event (often between 30 and 60 days) to
implement that cure.

There is a debate over exactly how important some of
these for-cause triggers are, given the low likelihood that they would occur
and the practical difficulty of proving their occurrence. Some LPs have taken
the position of avoiding negotiations related to the definition of the cause
events and focusing instead on other important areas for discussion in the LPA.

Common Remedies

Given
the nature of most for-cause events, it is not surprising that it is relatively
common to see several remedies available to the LPs following a for-cause
event. Removal of the GP generally requires between 50.1% and 66.7% of LP
support. Suspending or terminating the commitment period or dissolving the fund
generally requires a 66.7% vote, if the remedies are available.

No Fault

No-fault
provisions have become standard in LPAs for private equity. No-fault provisions
are generally designed to provide LPs with a remedy in the event that an
unexpected issue arises relating to the fund, and in many cases allow LPs to
pursue remedies that are not available under cause or key-person events.

Triggering No-Fault Clauses

To
trigger a no-fault provision requires only that a certain percentage in
interest of LPs vote to exercise this clause. No-fault remedies typically
require an LP voting threshold that is higher than that required for for-cause
remedies, generally in the range of 66.7% to 80% in interest of LPs.

Common Remedies

The
choice of remedies available to LPs after invoking a no-fault provision is the
subject of much negotiation during the process of fund formation. The GP and
the LPs tend to have divergent perspectives on which remedies are the most
appropriate. GPs prefer no-fault trigger provisions to have only extreme
consequences (e.g., dissolution of the fund), because they believe that the
severity of the consequences will make it less likely that LPs will actually
implement the remedy. LPs, on the other hand, prefer less draconian remedies
such as terminating the commitment period or removing the GP.

In the current environment it is fairly typical for
the LPs to be able to terminate the commitment period on a no-fault basis. The
theory is that if a significant percentage of LPs have lost confidence in the
GP, all further investments should stop. More LP-favourable LPAs also provide
for the replacement of the GP; if that remedy is available, however, the GP
would typically be entitled to receive all carried interest relating to
“pre-removal portfolio companies” (i.e., no discount) and often will receive
its distribution on a priority basis.

Key-Person Provisions

Defining and Negotiating Key-Person Clauses

Two
important factors in an LP’s decision to invest are the experience and the
track record of a fund’s principals. The goal of key-person provisions is to
establish the expectations of investors and management regarding the time that
those principals (and possibly other individuals) must commit to the fund.
Key-person provisions can also help keep LPs informed of departures, even if
the provision is not triggered. The fact that there is a trigger makes it more
likely that the GP will move quickly to rectify any situation and satisfy LPs.

Key-person provisions are generally accepted as
standard components of an LPA. The contentious aspect of key-person provisions
involves deciding the precise content of those provisions. Some of the
controversial decisions that need to be made include

which
individuals should be considered key persons?

how
many key-person losses would be required to trigger the key-person clause?

what
is the requisite time commitment for each key person or each group of key
persons?

Depending on the nature and size of the fund, it is
not unusual to have key-person clauses that extend beyond the principals to the
next level of management. The most important individuals in a fund (the
principals) are often listed individually by name with specific time
requirements. Other individuals who are considered “important executives” are
generally grouped together. For example, an LPA might require that all the
principals and/or “x number” of the “y number” of important executives remain
engaged full time by the fund throughout the entire term of the fund. The
combination of commitments and key persons can vary significantly, allowing for
countless possible definitions of key-person events.

In outlining the expected time commitment, most LPs
request that key persons devote “substantially all of their business time” to
the fund or related entities. Some LPAs use specific figures for time, such as
“75% of business time,” although this is less common. The principals, on the
other hand, might argue for a softer requirement, preferring terms such as a
“substantial amount of time” or even “such time as deemed necessary.”

Key-person provisions are, from the LPs’ perspective,
an important complement to for-cause provisions, giving the LPs the power to
ensure that any problems caused by the removal of key people (for any reason)
are addressed quickly. At the same time, the significance of key-person
remedies is arguably reduced if the LPA includes adequate no-fault remedies.

Cures and Common Remedies

Most
LPAs stipulate that the GP must notify the LPs when a key-person event occurs.
When this happens, there is usually an automatic suspension of the commitment
period, followed by a vote on whether to remove the suspension or to terminate
the commitment period. During the time between the automatic suspension of the
commitment period and the vote, the GP usually attempts to persuade the LPs not
to terminate the commitment period. A more LP-favourable LPA would stipulate
that the commitment period is automatically terminated unless the LPs vote
otherwise. Furthermore, in some funds, the LPs can vote to completely dissolve
the fund.

Convincing LPs to reinstate the commitment period
after a key-person event might require a plan to either replace the departed
executive(s) or continue the fund as is. Any such plan generally needs approval
from either the fund's Advisory Committee or a majority or supermajority in
interest of LPs.

Conclusion

Negotiating
the appropriate suite of trigger rights and remedies is a key component of every
discussion regarding the formation of private equity funds. Every effort must
be expended on the development of an appropriate package of triggers and
remedies to impose the necessary discipline on the activities of the GPs. This
package must be balanced so as not to erode the natural incentives for GPs to
achieve the best possible results for the fund and, by extension, for the LPs.
By developing a suite of trigger rights and remedies, the GP and LPs will have
a clear road map available them to address significant issues in the fund and
resolve them in a timely and orderly manner.

Cameron
Koziskie practises corporate and commercial law with an emphasis on private
equity, mergers and acquisitions and securities law. Sam Ault is a summer
student at Torys LLP

Footnotes

1. The
standard of negligence required is usually a topic of significant discussion.
For U.S. funds, “gross negligence” is the most common standard, and it is
occasionally used in Canadian funds. “Negligence” often refers to exercising
the care that a “reasonably prudent person would have exercised in a similar
situation.” Gross negligence, as the name suggests, implies a higher standard
to breach than simple negligence, although the extent of the difference under
Canadian law is not well-defined.

The content of this article is intended to provide a general guide
to the subject matter. Specialist advice should be sought about your
specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Board independence is a pillar of good corporate governance. It ensures that a corporation's management is properly monitored and that the corporation's decisions effectively balance the various stakeholders' interests.

The use of electronic signatures is becoming increasingly commonplace in commercial transactions, as individuals and businesses capitalize on the administrative efficiency afforded by today’s digital world.

This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).

Email Address

Company Name

Password

Confirm Password

Position

Mondaq Topics -- Select your Interests

Accounting

Anti-trust

Commercial

Compliance

Consumer

Criminal

Employment

Energy

Environment

Family

Finance

Government

Healthcare

Immigration

Insolvency

Insurance

International

IP

Law Performance

Law Practice

Litigation

Media & IT

Privacy

Real Estate

Strategy

Tax

Technology

Transport

Wealth Mgt

Regions

Africa

Asia

Asia Pacific

Australasia

Canada

Caribbean

Europe

European Union

Latin America

Middle East

U.K.

United States

Worldwide Updates

Check to state you have read and agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you
are granted a non-exclusive, revocable license to access the Website under its
terms and conditions of use. Your use of the Website constitutes your agreement
to the following terms and conditions of use. Mondaq Ltd may terminate your use
of the Website if you are in breach of these terms and conditions or if Mondaq
Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to
read the full text of the content and articles available (the Content). You may
not modify, publish, transmit, transfer or sell, reproduce, create derivative
works from, distribute, perform, link, display, or in any way exploit any of the
Content, in whole or in part, except as expressly permitted in these terms &
conditions or with the prior written consent of Mondaq Ltd. You may not use
electronic or other means to extract details or information about Mondaq.com’s
content, users or contributors in order to offer them any services or products
which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the
suitability of the information contained in the documents and related graphics
published on this server for any purpose. All such documents and related
graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or
its respective suppliers hereby disclaim all warranties and conditions with
regard to this information, including all implied warranties and conditions of
merchantability, fitness for a particular purpose, title and non-infringement.
In no event shall Mondaq Ltd and/or its respective suppliers be liable for any
special, indirect or consequential damages or any damages whatsoever resulting
from loss of use, data or profits, whether in an action of contract, negligence
or other tortious action, arising out of or in connection with the use or
performance of information available from this server.

The documents and related graphics published on this server could include
technical inaccuracies or typographical errors. Changes are periodically added
to the information herein. Mondaq Ltd and/or its respective suppliers may make
improvements and/or changes in the product(s) and/or the program(s) described
herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally
identifies you, including what sort of information you are interested in, for
three primary purposes:

To allow you to personalize the Mondaq websites you are visiting.

To enable features such as password reminder, newsletter alerts, email a
colleague, and linking from Mondaq (and its affiliate sites) to your website.

Mondaq (and its affiliate sites) do not sell or provide your details to third
parties other than information providers. The reason we provide our information
providers with this information is so that they can measure the response their
articles are receiving and provide you with information about their products and
services.

If you do not want us to provide your name and email address you may opt out
by clicking here .

If you do not wish to receive any future announcements of products and
services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to
view the free information on the site. We also collect information from our
users at several different points on the websites: this is so that we can
customise the sites according to individual usage, provide 'session-aware'
functionality, and ensure that content is acquired and developed appropriately.
This gives us an overall picture of our user profiles, which in turn shows to
our Editorial Contributors the type of person they are reaching by posting
articles on Mondaq (and its affiliate sites) – meaning more free content for
registered users.

We are only able to provide the material on the Mondaq (and its affiliate
sites) site free to site visitors because we can pass on information about the
pages that users are viewing and the personal information users provide to us
(e.g. email addresses) to reputable contributing firms such as law firms who
author those pages. We do not sell or rent information to anyone else other than
the authors of those pages, who may change from time to time. Should you wish us
not to disclose your details to any of these parties, please tick the box above
or tick the box marked "Opt out of Registration Information Disclosure" on the
Your Profile page. We and our author organisations may only contact you via
email or other means if you allow us to do so. Users can opt out of contact when
they register on the site, or send an email to unsubscribe@mondaq.com with “no
disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate
registration form. This is a personalised service where users choose regions and
topics of interest and we send it only to those users who have requested it.
Users can stop receiving these Alerts by going to the Mondaq News Alerts page
and deselecting all interest areas. In the same way users can amend their
personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an
identifying user number. The cookies do not contain any personal information
about users. We use the cookie so users do not have to log in every time they
use the service and the cookie will automatically expire if you do not visit the
Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to
personalise a user's experience of the site (for example to show information
specific to a user's region). As the Mondaq sites are fully personalised and
cookies are essential to its core technology the site will function
unpredictably with browsers that do not support cookies - or where cookies are
disabled (in these circumstances we advise you to attempt to locate the
information you require elsewhere on the web). However if you are concerned
about the presence of a Mondaq cookie on your machine you can also choose to
expire the cookie immediately (remove it) by selecting the 'Log Off' menu option
as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example,
advertisers). However, we have no access to or control over these cookies and we
are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement,
and gather broad demographic information for aggregate use. IP addresses are not
linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or
its affiliate sites) are not responsible for the privacy practices of such other
sites. We encourage our users to be aware when they leave our site and to read
the privacy statements of these third party sites. This privacy statement
applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or
contests. Participation in these surveys or contests is completely voluntary and
the user therefore has a choice whether or not to disclose any information
requested. Information requested may include contact information (such as name
and delivery address), and demographic information (such as postcode, age
level). Contact information will be used to notify the winners and award prizes.
Survey information will be used for purposes of monitoring or improving the
functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our
site, we ask them for the friend’s name and email address. Mondaq stores this
information and may contact the friend to invite them to register with Mondaq,
but they will not be contacted more than once. The friend may contact Mondaq to
request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’
information. When users submit sensitive information via the website, your
information is protected using firewalls and other security technology. If you
have any questions about the security at our website, you can send an email to
webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode),
or if a user no longer desires our service, we will endeavour to provide a way
to correct, update or remove that user’s personal data provided to us. This can
usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will
post those changes on our site so our users are always aware of what information
we collect, how we use it, and under what circumstances, if any, we disclose it.
If at any point we decide to use personally identifiable information in a manner
different from that stated at the time it was collected, we will notify users by
way of an email. Users will have a choice as to whether or not we use their
information in this different manner. We will use information in accordance with
the privacy policy under which the information was collected.

How to contact Mondaq

If for some reason you believe Mondaq Ltd. has not adhered to these
principles, please notify us by e-mail at problems@mondaq.com and we will use
commercially reasonable efforts to determine and correct the problem promptly.